DOMINICAN REPUBLIC – PABLO GONZALEZ TAPIA (PGT)
As far as the Dominican Republic goes, we are party to a convention called the Inter-American Convention on Execution of Preventive Measures.
This is an old treaty in place since 1979, but it is seldom use in practice. Under the treaty, any party member is entitled to make a request to the Dominican Republic to issue a temporary preventive measure.
This treaty has the significance that it deals with foreign claims dealing with labour, civil and commercial matters. The Dominican Republic has a very large numbers of treaties based on mutual traditional systems, but most of them have to do with persecution based on a criminal infringement. For civil, labour and commercial matters, this is the only convention in place.
We do have also banking secrecy laws, but from the civil perspective, a creditor is not harmed by the banking secrecy laws; in other words, this is not an obstacle to freeze bank accounts. Under our enforce¬ment procedures, a creditor can place an embargo with a bank, without knowing exactly whether the debtor has an account with that bank. It would be the bank’s obli¬gation, after the embargo is placed, to let know the creditor whether the intended debtor has any money in the bank.
With regard to companies, we have the problem of piercing the corporate veil, because we recognise that the company has a legal authority. In that case, in order to locate the assets of a debtor company, we will be required by the court to pierce the corporate veil. There’s a lot of very new legislation in the Dominican Republic, with very complicated procedures around piercing the corporate veil.
You would need to determine that there's a fraud, and that the debtor and is using different companies to conceal assets. Where location of assets is concerned, the debtor will try to locate measures to seize the assets in the same place that the assets are located.
Netherlands - JW
Well, if we examine treaties, we must, of course, refer to the European Union Treaty in which there is a free exchange of judgments between the member states.
This free exchange between the member states makes it much easier to execute a possible favourable judgment against an opponent. Most people in the EU are aware of the regulation EU number 655 2014, applicable from January 18 2017, and providing for a European account preser¬vation order.
It lets a court in one EU country freeze funds in the bank account of a debtor in another EU country. It is a procedure that may be used in cross-border cases, where the court carrying out the procedure, or the country of domicile of the creditor, are in different member states than the one in which the debtor account is maintained. That makes it easier to recover debts, and acts as an alternative to existing legal procedures.
It does not apply in all EU countries, though, for instance Denmark and the UK.
Spain - RC
When you are enforcing an EU judgment in Spain, the procedure is pretty straight forward. It could take just a month to achieve an asset seizure.
The important point here, is the fact that the debtor is not aware of the enforce¬ment procedure until he or she receive the seizing order from the court. This means there is literally no time to conceal any assets or to default the creditor.
Things change when you have to enforce a judgment outside the EU. In such a case, you have to go through a process within the court in order to achieve the recognition of the foreign judgment. Then the first difficulty is to serve the procedure to the debtor.
It is awfully common that debtors are hidden or assets are concealed within the company under other names. If the debtor becomes aware of the enforcement procedure, then the concealing behaviour increases.
In order to tackle such behavior, the Spanish government passed a modifica¬tion to the criminal code in 2015, by which the felony for concealment of assets was consider¬ably tightened.
Austria - KO
As of 18 January 2017, credi¬tors domiciled within the EU can also apply for a European Account Preservation Order (EAPO) in order to secure claims. This interim measure is available before and after proceedings have been initiated or a judgment has been granted. The EAPO is directed at the seizure of bank accounts within the EU and is available for all kinds of pecuniary claims including claims relating to tort, delict and civil claims for damages or restitution that are based on an act giving rise to criminal proceedings.
Generally, the opposing party is neither informed about the creditor’s applica¬tion nor heard prior to the granting of the EAPO. The claimant has to provide suffi¬cient evidence for the endangerment of the enforcement of the claim. If the creditor has not yet obtained a judgment, the competent court will have to decide within ten working days after the application has been filed. An EAPO issued in an EU Member State is automatically recognised in all other partic¬ipating EU Member States.
England - FT
Foreign judgments (where there are reciprocal arrangements or trea¬ties in place) can be registered in the high court and once registered all the normal enforcement processes available to a creditor can be used against assets of the debtor held within the jurisdiction of England & Wales.
Separate registration would be needed to deal with assets in Scotland or Northern Ireland but the process is not that compli¬cated.
Enforcement of a judgment is not court led in the sense that it is for the judgment cred-itor to make applications to use the enforce¬ment options.
If you know what assets are held by the debtor there are various means by which those particular assets can be seized – e.g. bank accounts, vehicles, etc.
Property (buildings/land) can be made subject to a charging order for the value of the debt, but such orders sit behind any mortgages/charges already registered against the title. If the debt is significant it is also possible to then upgrade the charging order by applying for an order for sale.
If you don’t know what the debtor has by way of assets, an application can be made for the debtor to attend the court and provide information about what assets they have. The debtor gets two chances to attend the court and if they fail to appear, the court will regard that as a contempt of court and order their arrest. They would be released once they had provided the infor¬mation.
It is not, however, a particularly effective means of getting information, and if the debtor drags out the process, it can be months between making the application and the debtor finally attending court.
Cayman Islands - CB
The Cayman Islands has a panoply of tools to aid in the discovery of assets. These include the Confidential Information Disclosure Law, Anton Piller Orders, Bankers’ Books Orders, Disclosure Orders, Letters of Request, and pretrial depositions. It goes beyond the scope of this discussion to expand upon all of these, but some of the more important are described below.
The Confidential Information Disclosure Law, 2016, may be used as a shield to protect sources of confidential informa¬tion from legal action. The original version of this law provided that the trading and misuse of confidential information was (with various exceptions) a criminal offence either if committed in the Cayman Islands, or worldwide if it relates to Caymanian subject matter. The new CIDL Law removed this criminal offence for breach of confi¬dence, and expands the circumstances in which disclosure can be made. It provides a clearer list of circumstances in which disclosure is permitted and a list of author¬ities to which confidential information can be disclosed.
Anton Piller orders are available in the Cayman Islands Orders to prevent the destruction or dissipation of documents. A plaintiff may obtain such an order pre-action and ex parte in exceptional cases, and, if necessary, seize evidence in the defendant’s possession without warning. The test for obtaining such as order is difficult to satisfy, and the party applying for the order must give undertak¬ings, inter alia, to provide damages if it is determined at a later date that the order should not have been made.
Section 8 of the Evidence Law (2019 Revision) allows a Cayman Islands court to order that an applicant be permitted to inspect and take copies of a ‘bankers’ book’. Norwich Pharmacal Orders are available against third parties before suit, who are involved in arguable wrongdoing, whether intentionally or otherwise. They are applied for against registered agents holding details of the actual owners or ulti¬mate beneficial owners of the entities in question.
Turkey - CEB
In the context of legal disputes, in Turkey, the tools are divided into two types as a quick and effective solution which are provisional injunction and provisional attachment.
A decision for the injunction may be taken against the dispute in cases when the protection of the rights of the claimant is obligatory, the judge may decide before the hearing. The requesting party has to prove his/her rightness approximately.
The provisional injunction on the basis of the note is not affected by the allegation of falsity about the note and the note holder may request new measures to protect his/ her rights when necessary.
The court may decide on any measure that would eliminate the drawback or prevent loss, such as protecting the goods or rights subject to the measure, or safe¬keeping or not doing something.
The provisional injunction decision can take several forms such as the failure to return the bank guarantee letters, failure to return the charge of the letter, the suspen¬sion of payment of receivables, the preven¬tion of delivery of goods, the suspension of a navigation of the ship, the prevention of the transfer of real estate to the third persons, blocking bank accounts, the suspension of transfer of copyrights.
In the case of a provisional attachment, the creditor of a due pecuniary debt levies the movable and immovable property and receivables and other rights of the debtor into third-party custody.
Because of the undue debts, the provi¬sional attachment is only requested if the borrower does not have a specific resi¬dence, or if the borrower prepares to hide or to smuggle their property, or if they make fraudulent transactions that violate the rights of the creditor.
The creditor is obliged to provide evidence to the court that convinces them about the reasons for the debt and attachment. The court is free to listen to both sides, and it is possible to appeal this decision.
If the creditor requesting a provisional attachment is wrong, they are liable for all damages and the collateral to be paid to the debtor and the third party. If there is only one court decision, no collateral is required.
Turks & Caicos Islands - SW
We don't have mutual recognition and enforcement of judgments with anybody, including the UK, which means it's difficult to enforce orders and judgments in the Turks and Caicos Islands, and vice versa.
We do have a mutual legal assistance treaty with the US, which allows US authorities to approach the court here and obtain information and to freeze assets in this jurisdiction. This also enables us to be able to obtain similar assistance from the US.
With regard to banking secrecy laws and the protection of confidential infor¬mation generally, our Confidential Rela¬tions Ordinance was such that we had very tight confidentiality provisions which meant that in civil litigation it was very difficult to obtain confidential information including discovery from a bank regarding somebody’s bank account, unless that person consented to the release of that information. Part X of the Companies Ordinance (Cap. 16.08) provides for a process whereby a person intending or being required to give in evidence in, or in connection with, any proceeding being tried, inquired into or determined by any court, tribunal or other authority (whether within or without the Islands) of any confi¬dential information within the meaning of Part X, may before so doing apply to the Supreme Court for directions.
U.S - Ohio - CN
There is no Federal treaty to recognise foreign judgments, so a foreign judgment would have to be entered into state-by-state, based upon the laws of recognition or Res Judicata.
You have to basically file a new complaint and likely attach the judgment and show that the issues already decided in the foreign jurisdiction are subject to a fair and full trial. The court would determine under its laws whether to recognise those issues as already having been decided.
Another option might be arbitration, where the Federal court may recognise the arbi-tration award if it complied with the US Federal Arbitration Act.
Germany - JS
German law does not recog¬nise asset tracing. However, the debtor's asset information is to be submitted to the bailiff within the framework of an enforce¬ment carried out by the creditor against the debtor. This serves to provide the cred¬itor with knowledge regarding the assets belonging to the debtor in order to be able to successfully enforce them.
In accordance with Sec. 802c et seq. ZPO, the creditor may entrust the court bailiff directly with the acceptance of asset information. This information may open up further enforcement possibilities for the creditor. If the debtor refuses to submit the asset information, or if he fulfils his obli¬gation but the enforcement of the listed assets is unlikely to result in full satisfaction for the creditor, the court bailiff is author¬ised pursuant to Sec. 802l ZPO to obtain further information about the debtor from third parties at the creditor's request.
The creditor may obtain information about the debtor's bank accounts from the Federal Central Tax Office, ask the statu¬tory pension insurance institution for the debtor's employment relationships that are subject to social insurance contributions, or ask the Federal Motor Transport Authority about vehicles registered in the debt¬or’s name. If the debtor does not attend the meeting to submit the asset informa¬tion, without excuse or refuses to provide the information without a reason, the local court issues a detention order at the cred¬itor's request (Sec. 802g ZPO). The arrest serves only to enforce the disclosure of the property information. After the information has been submitted, the debtor is released from custody. The term of the detention may not exceed six months (Sec. 802j (1) ZPO).
Orders by courts outside of the EU may be enforced if they have the same legal quality as a German order, which requires an exequatur proceeding. As an EU member, Germany profits from EU regulations and treaties governing cross-border litigations. These regulations simplify the service of documents and the enforcement of judg-ments. The EU regulation 655/2014, for example, intends to give creditors the possibility to ensure, even before main proceedings or at any stage of the litiga¬tion, that a following court decision on the main action may also be enforced. It allows a temporary attachment of an account of an EU member without warning the debtor, which is uncommon in German law.